Bringhurst v. Orth , 7 Del. Ch. 178 ( 1894 )

Wolcott, Chancellor.

Hannah Shipley in and by her last will and testament, after certain bequests, directed her executor to divide all her real and personal property into seven equal shares, and in order to make such division, authorized and empowered him to sell all or any part thereof; she then devised and bequeathed the same as follows:

“ 1st. One of those equal shares to the children of my nephew Joseph Dixon, deceased, viz.: Elizabeth Orth, Olivia Dixon, and Anna Dixon, in equal parts.

“ 2d. Another of those seven equal shares, to my nephew, Samuel Dixon.

“ 3d. Another of those seven equal shares, to the children of my nephew Thomas Dixon, deceased, to-wit: Thomas IST. Dixon, Mary Emma Dixon, George Dixon, and Sallie Dixon, in equal parts.

“ 4th. Another of those seven equal parts to my niece Mary Anna Paschall.

“ 5th. Another of those seven equal shares to my niece Emma Bayard.

“ 6th. Another of those seven equal shares to the children of my nephew Thomas Shipley, deceased, to-wit: Hamilton Shipley, Samuel Shipley, Emma Shipley, and Elizabeth Shipley, in equal parts.

7 th. And the other of those seven equal shares, to my niece Sarah Bringhurst.” * * * “ Provided, always, and I do hereby direct that if any of the devisees or legatees in this, my will, named, shall die before me, then the said devises and legacies shall not lapse, but shall pass and go to such person and persons as would be the heirs-at-law of such devisee or legatee under the intestate laws of the State of Delaware.”

On the 28th day of Uovember, A. D. 1885, the testatrix made and executed a codicil containing the following provisions: “ In case of the death before my death of 'any of the legatees or devisees named in my will, the share of those dying before me to go to their issue, the said issue to take the share of their deceased parent, except as to any share which would go to Samuel D. Paschall.” The testatrix then devised to the said Samuel D. Paschall his share for and during his life in trust, and upon his death, to his children or the issue of any of his deceased children freed from the trust.

Olivia Dixon and Anna Dixon, two of the devisees and legatees named in the first class, died before the death of the testatrix without leaving issue. George Dixon, one of the legatees and devisees named in the third class, also died before the testatrix without leaving issue. Mary Ann Paschall, the sole legatee and devisee of the fourth class, died before the testatrix, leaving to survive her, among other children, the said Samuel D. Paschall, referred to above.

Hannah Shipley, the testatrix, died on the 15th day of December, A. D. 1891, and letters testamentary were granted in due course of law to Edward Bringhurst, Jr., the executor named in the foregoing will.

The essential point for determination in this case is whether the shares of Olivia Dixon and Anna Dixon, of the first class of devisees and legatees named in the will, and George B. Dixon, of the third class, who1 died before the testatrix without leaving issue, devolved upon their respective heirs-at-law or lapsed.

The decision of this question depends upon, whether the clause in the will which provides, “ that if any devisees or legatees in this, my will named, shall die before me, then the said devises and legacies shall not lapse, but shall pass and go to such person and persons as would be heirs-at-law of such devisee or legatee under the intestate laws of the State of Delaware,” was revoked by the provision in the codicil directing that “ in case of the death before my death of any of the devisees or legatees named in my will, the share of those dying before me to go to their issue,” etc.

In order that a codicil shall operate as a revocation of any part of a will, in the absence of express words to, that effect, its provision must be so inconsistent with those of the will as to exclude any other legitimate inference than that of a change in the testator’s intention. They are both supposed to be made and executed with the same solemnity and deliberation, and, therefore, both are entitled to the same degree of consideration.

The part of the codicil now before us contains no express words of revocation. It only remains, therefore, to determine whether this particular provision of the will and the codicil are inconsistent or contradictory at all, or whether they are so much so as to justify the conclusion that they are absolutely inharmonious or irreconcilable, under the rules recognized and adopted by all courts for the construction of wills.

The language of the former is so plain and explicits as to leave no room for doubt as to the intention of the testatrix. She expressly declares that the death before her death of any of the beneficiaries named in her will shall not cause the lapse of any of the devises and legacies, but that the shares of those so (lying shall pass and go to those persons who would be the heirs-at-law of said beneficiaries under the intestate laws of this State. The language quoted from the latter is equally clear and explicit. In this provision the testatrix declares that the shares of those devisees and legatees who shall predecease her shall go to their issue. I repeat the inquiry: Are these two provisions inconsistent and contradictory ? It is very clear that they are not, so far as the death of any legatee before the decease of the testatrix, who left child or children that survived her, is concerned. The language of the codicil could not, under such circumstances, change or alter the result which would have occurred, if it had been entirely omitted, and the testatrix had permitted the will to remain without this amendment. According to the codicil, the shares of those devisees and legatees dying* before her death are to go to their issue. Exactly the same result would have occurred under the provisions of the will, for the issue of the deceased devisees and legatees would have been their heirs-at-law under the intestate laws of this State. The codicil then simply reaffirms in different language the already expressed intention of the testatrix in the will, if all the devisees and legatees who predeceased her had left issue. They differ widely in range or scope, but they do not differ so far as they express the preference of the testatrix for the children of a deceased legatee. This difference arises by reason of the terms used by the testatrix to designate the substitutes who were to take in the place of those devisees and legatees predeceasing her. In the will the substitutes are denoted by the term “ heirs-at-law;” in the codicil, by the term “ issue.”

Though the words “ heirs-at-law ” are broader and more comprehensive than the word “ issue,” yet, the latter is always embraced in the former, though used in its most technical sense.. Now, since the term in the will will carry the gift to the persons included in the term “ issue,” to the exclusion of the collateral heirs of any deceased legatee, how can it be argued that there is any antagonism between the intention expressed in the will and the intention expressed in the codicil? If these terms had been used by the testatrix in the order in which they stand to limit the quantity or duration of an estate in lands, and not to indicate the objects of her bounty, as it was clearly her purpose to do, we should be met with a very different condition of things. In such a case the language of the will would have to yield to the language of the codicil, and the donee would take, such an estate only as the language of the latter would import.

Thus, up to the point where the direct line of descent terminates, there is no clash between these two provisions. The disputed terms of both are fully satisfied as is forcibly illustrated in the case of Mary Ann Paschall, one of the legatees who died prior to the death of the testatrix, leaving children still living. PTo objection has been raised, neither could there be to the children of this deceased legatee taking her share, because they answer to the description of the persons entitled under either the will or the codicil.

But just at this point a more serious and embarrassing question arises, and that is whether there is any inconsistency between the provisions of the will and the codicil, as applied to the collateral heirs of a legatee, dying before the testator without issue.

The will declares that upon the death of any devisee or legatee, before the death of the testatrix, the devise or bequest of such deceased devisee or legatee shall not lapse, but shall go to his or her heirs-at-law. The codicil declares, omitting the words “ shall not lapse,” that the devise or legacy to such deceased devisee or legatee shall go to his or her issue. The will and the codicil constitute part of the same testament and they are each in legal estimation equally sacred and inviolate. Any part of the one not inconsistent with the other, either expressly or inferentially, cannot be set aside as unnecessary language. There is not a word or a syllable in the second codicil, or any of the others, that can be held to operate as a revocation of the words “ shall not lapse,” contained in the body of the will. These words must, therefore, remain as an essential part of the last will and testament of the testator. And the intention thereby expressed, against a lapse and a consequent intestacy of any portion of her estate, must be recognized at every stage of the discussion and interpretation of the will. Courts, in such cases, are always very broad and liberal in their views so as to prevent the frustration or defeat of such a clearly expressed purpose as that indicated by the words above quoted.

Hothing is said in the codicil as to those devisees and legatees who shall die before the testatrix leaving no issue to take their parent’s share, as was the case with Olivia, Anna and George B. Dixon. How, if the codicil stood alone, and the only provision against a lapse was that contained in it, a lapse as to the shares of the deceased Dixons would have been the inevitable result. It does not, however, stand alone. It must be construed in connection with the provision of the will, which declares against a lapse and substitutes the heirs-at-law of any original legatee, who died before the testatrix without issue. While it is true the codicil substitutes for such deceased original legatee, his or her issue, but in the event of the death of any original legatee before the testatrix without issue, it provides no substitute to take in his or her place. As to that contingency, it is absolutely silent. How, at the point when the codicil becomes silent, what is there to hinder the will from speaking words, as the only medium left through which to obtain the desire of the testatrix as to the further disposition of such legacy? That is to say, what is there to prevent the will from taking up the legacy of such deceased legatee just where the codicil drops it, and carrying it to its destination, to his or her heirs-at-law, according to the original purpose of the testatrix? Is it not a little singular, at least, that she should have reaffirmed her expressed purpose to avoid a lapse, and then in the next breath increased the chances or possibility of a lapse? It looks as if she had redeclared her intention to do a queer thing and then abandoned the means by which its accomplishment could alone be fully attained. In view of the foregoing consideration, I must confess my reluctance to yield assent to the conclusion that the testatrix intended by the codicil to make a contingency probable, .which before was barely possible, upon the happening of which the scheme of distribution so clearly set forth in the original will was liable to a partial if not a total failure.

Fortunately, we are not restricted to these provisions of the will and the second codicil as the- only source of light upon this subject. The subsequent provisions of this codicil and certain provisions of the remaining codicils are quite suggestive as to what the testatrix meant in the use of the word “ issue ” found in the second paragraph of the second codicil.

It may be assumed as generally true, that in all the codicils, with perhaps the one exception, the testatrix did not leave in doubt or obscurity her original purpose to avoid a lapse as to any portion of her estate, and as a means to that end to keep it in the same line or course of descent as that prescribed in the body of the will. This is equally true of other codicils in which alterations are made, involving radical or specific changes, as to the share of any legatee who might predecease her without issue. Having arranged the beneficiaries under- her will in classes composed, I believe, of nieces and nephews, she directed the great bulk of her property to' be distributed among them in equal shares. She seems to always have had in mind the desire that the share of each legatee so dying should go to the surviving member of his or her class, or to his or her next of kin. The testatrix never made herself the stock, or root from whom the degree of kinship should be computed or reckoned in ascertaining who the takers of any legacy would be. in case of the death of any legatee before the death of the testatrix, in that event.

And now, to-wit: This 26th day of September, A. D. 1894, the above-stated cause having come on to be heard before the Chancellor, and argument of counsel having been heard thereon, and the same having been maturely considered, it is hereby ordered, adjudged and decreed that the shares of the said Olivia F. Dixon, Anna Shipley Dixon and George B. Dixon, in the. estate of and under the will of Hannah Shipley, deceased, did not lapse upon their decease without issue before the said testatrix, but the said shares of the said Olivia F. Dixon, Anna Shipley Dixon and George B. Dixon, descended and came to and upon their heirs-at-law, to-wit: that the said shares of the said Olivia E. and Anna Shipley Dixon descended and came to and upon their surviving sister, Elizabeth B. Orth, and that the said share of the said George B. Dixon descended and came to and upon Thomas N. Dixon, Mary Emma Dixon and Sallie B. Dixon, in equal shares.

And that the said Edward Bringhurst, Jr., executor of Hannah Shipley, deceased, is hereby ordered, instructed, directed and decreed within sixty days from the date of this decree, to pay over and deliver unto the said Elizabeth B. Orth, the said shares under the said will of the said Olivia E: Dixon, deceased, • and the said Anna Shipley Dixon, deceased, and unto the executor of the said Thomas BT. Dixon, deceased, and unto Mary Emma Dixon and Sallie Dixon, in equal shares or parts, the said share under said will, of the said George B. Dixon, deceased, in accordance with this decree.

And it is further ordered, adjudged and decreed that the costs in this cause are taxed at the sum of $63.50, and that the same shall be paid by the said executor, the complainant, out of the general funds of the said estate.